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ScottyMacEsq, Lawyer

Category: Family Law

Satisfied Customers: 12566

Experience: Licensed Texas General Practice Attorney

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Parents are still married, not even separated, and pending

Customer Question

Parents are still married, not even separated, and pending actions. Can one parent abduct the child to a foreign state or country, with or without the child's agreement, when the other parent objects? New York State. Twins are just now 13. Constantly abducted to other countries and states in the past, continuing. THis is physical abduction, often against their will.

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ScottyMacEsq :

I'm sorry to hear about your situation. To be clear, is there any order (even temporary orders) in place regarding custody / visitation?

Customer:

No orders of any kind, no actions, but there is strong evidence that much preparation has been put into a permanent abduction to a country (mainly Germany) that does not respect US family law. My wife has dual citizenship and she just acquired German passports for my sons. This is foreseeable, what is about to happen, abduction ahead of a probable court action.

Customer:

Germany, Sweden, and 3 others do not respect a US custody decision, so actions here later will be of no consequence once they're gone.

ScottyMacEsq :

That's not necessarily true (since they are signatories to the Hague Convention), although it could be more difficult to get the children returned if this does happen. While the Hague Convention does prohibit and adjudicate international child abduction situations, "abduction" has a very specific meaning. For a removal of a child from one country to another or a retention to be “child abduction” under the Hague Convention the following have to apply a: 1. The child has to be habitually resident in the country from where it is taken. Therefore returning from holiday to the country of habitual residence is not abduction. Sometimes the issues on this are not clear. 2. The move has to be in breach of “rights of custody” of someone else. The term is not the same as a similar term in national laws. In America this can be the custodial parent OR the non custodial parent who loses the right to visit. If there is a court case about the child that has started and not finished, the court is regarded as having “rights of custody” for the purposes of the Hague Convention. 3.The “rights of custody” have to be exercised at the time of the move.

ScottyMacEsq :

Germany is a signatory, and it's an international court (not a German court) that would adjudicate the matter.

ScottyMacEsq :

That being said, it would be better to avoid that altogether, and seek emergency temporary orders ordering the children to be kept in the U.S.

ScottyMacEsq :

Sometimes a court will even order the surrendering of the children's passports so that they cannot leave.

ScottyMacEsq :

(and if there's good evidence that the other parent is considering leaving in such a manner, the court could very well order this)

ScottyMacEsq :

But it is very important to have a "right of custody".

ScottyMacEsq :

That means having an order from a court giving you that right.

Customer:

Consequences of an immediate bolt to Europe upon learning of my attempt at an emergency order. This is a super-wealthy doctor who has every lawyer in this county on retainer for this very purpose?

Customer:

She has them on retainer specifically to monitor any actions I might pursue. This is already known, was done in secret.

ScottyMacEsq :

Then you might want to go out of county to find such a lawyer that can assist.

ScottyMacEsq :

Again, if she were to leave, you could still get an order giving you custody, but that would have to go through the Hague Convention process.

ScottyMacEsq :

It's not true that if you're married that the state department can't do anything, but rather if you don't have a custody order in place.

ScottyMacEsq :

You can be separated but with a custody order, the state department could then get involved.

Customer:

Very specifically, does that mean I, too, can just take them to Kentucky without her permission and stay at least "awhile." And if she sends the troops to physically remove them, THEN what happens?

ScottyMacEsq :

Married and living together, however, they couldn't.

ScottyMacEsq :

Yes. Without a custody order in place, either parent could take the kids. Now she could then obtain an order in NY, take it to KY, and seek to regain possession of the kids. NY would have jurisdiction over such a case unless and until the kids have lived in the new state for at least 6 months.

Customer:

She contends, from a divorce lawyer she has on retainer, that it is up to the child to determine. I find this hard to believe, absent court decisions.

ScottyMacEsq :

No, it's not up to the child to determine. The child's preferences would be considered and taken into account, but it would be part of the larger "totality of the circumstances".

Customer:

Last question: I mean before court actions, decisions, anything. Like right now.

ScottyMacEsq :

Understood. It might be difficult to get them to come along with you, but they don't have the capacity to make their "own" decisions at 13. The main thing is that there can't be a breach of the peace (which is when the police could get involved and start issuing temporary restraining orders, etc...)

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

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